Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Argument recap: Kennedy shows his hand

Posted Mon, March 28th, 2011 12:05 pm by Lyle Denniston

Analysis

Justice Anthony M. Kennedy, who definitely seems to hold the deciding vote on the newest test of the Supreme Court’s skepticism about campaign finance laws, made repeated comments on Monday suggesting that he is very wary of Arizona’s attempt to offset the impact of wealthy candidates paying their own way. Among a variety that could be noted, no remark was more telling than what seemed almost to be a rhetorical question: “Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?”

That, of course, is the whole point of the challengers of the 1998 state law that provides subsidies with public funds for candidates who forgo private fund-raising, if their self-financed candidates spend more than a specified minimum. And, in response to Kennedy’s leading question, the challengers’ lawyer, William R. Maurer of Seattle, predictably responded: “The entire motivation of this was to limit spending in leveling the playing field. Limiting spending indicates that they wanted less political speech in the state of Arizona, and that’s what they’ve got.”

Despite efforts by some other Justices — especially, Justice Elena Kagan — to make the point that a subsidy to one candidate does not actually force a self-financed candidate to do anything, it was more than evident on Monday that the Arizona system — which the Court did block in a temporary order, stopping the subsidies during last year’s campaign — was in deep constitutional jeopardy. The validity of the law is under review in Arizona Free Enterprise Club, et al., v. Bennett, et al. (10-238) and McComish, et al., v. Bennett, et al. (10-239).

It seemed clear, last June, when the Court ordered a halt to the subsidies, that at least a majority of the Court thought the system might run afoul of the Justices’ 5-4 decision in Davis v. Federal Election Commission in 2008, which barred campaign finance laws that seemed to penalize a disfavored candidate — the one running on his or her own money. The question, then, was whether the Court, when it actually looked closely at the Arizona scheme, would find it, too, to be a penalty — or at least a significant burden– on self-financed candidates (even though Davis was not a subsidy case).

Four of the members of the Davis majority (all but Justice Clarence Thomas, who said nothing) left little doubt Monday that they probably accept the challengers’ basic logical premise. As their attorney, Maurer, put it early in his argument: “What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.”

Justice Kagan immediately wondered whether, if it were proven that there were “no deterrent effect” on a candidate when a subsidy went to an opponent, because the candidate preferred to speak rather than remain silent, would that still be unconstitutional? Maurer said it would be, because the subsidized opponent would benefit from the candidate who continued to speak. Justice Antonin Scalia, one of the Davis majority members, seemed to feel a need to give his own implied answer to Kagan, suggesting that it would be unconstitutional if the government put a $500 fine on all candidates, even if every candidate paid the fine and went on speaking.

Later, when Kagan would question whether there was any real evidence in the case that self-financed candidates did actually curtail their campaigns out of fear of triggering a subsidy for an opponent, Chief Justice John G. Roberts, Jr., questioned how anyone could try to “prove a negative,” indicating that the burden of a system like Arizona’s was self-evident, as “a matter of common sense.”

Noting that the law in Arizona triggers subsidies not only when a self-financed candidate spends beyond a limit, but also when an independent group supporting a self-financed candidate helps exceed that limit, the Chief Justice remarked: “If you knew that a $10,000 expenditure that you would make that would support a candidate would result in $30,000, $40,000, $50,000, depending on how many opposition candidates there were available for them, wouldn’t you think twice about it?”

When Arizona’s lawyer, Bradley S. Phillips of Los Angeles, countered that “thinking twice is not a severe burden,” the Chief Justice retorted: “Well, if you’re thinking twice and one way you’re thinking is not to do it, that sounds like a sufficient burden.”

Justice Samuel A. Alito, Jr., the author of the Davis opinion that struck down discriminatory treatment of self-financed candidates, bluntly suggested that the Arizona system actually works as a regulation of political speech based upon its content — the worst constitutional sin under the First Amendment. If a group that wants to spend money independently in a campaign would prefer a self-financed candidate, because that candidate takes a stand on a controversial issue that the group likes, Alito said, the group knows that if it pays for an ad for its favorite, the subsidized candidates with the wrong position is going to get more funds. “Now,” said Alito, “why isn’t that a clear-cut discrimination based on the content of speech?” It was obvious that he thought it was.

One of the problems for the defenders of the subsidies in Arizona is that, among their own ranks, they have defended the system as one to “level the playing field” in campaign finance — a goal that the Supreme Court has several times said is not a valid basis for campaign money restrictions. The Chief Justice sought to make much of the fact that the website of the organization that administers the system claims explicitly that the aim is to level the financing field.

The most that a federal government lawyer, assistant to the Solicitor General William M. Jay, could muster in response was that he did not speak for that organization.

The trend of the argument was obvious to perhaps every one in the courtroom, but it was Justice Stephen G. Breyer, a strong supporter of campaign finance regulation, who captured the mood perfectly, with a lament. “What’s going through my mind is we are deeply into the details of a very complex bill,” he commented. “McCain-Feingold [the federal law, several parts of which the Court has now struck down] is hundreds of pages, and we cannot possibly test each provision which is related to the others on such a test of whether it equalizes or incentivizes or some other thing, because the answer is normally we don’t know.”

“And,” Breyer went on, “it is better to say that it’s all illegal than to subject these things to death by a thousand cuts, because we don’t know what will happen when we start tinkering with one provision rather than another. That thought went through my mind as I’ve heard this discussion.”

However many cuts it may take, it appears, the Arizona system seemed close to bleeding to death.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]